R v P, NJ

[2003] SASC 308

R v POMPEY
[2003] SASC 308

Criminal

Trial by Judge Alone:  Reasons for Verdicts

1. MULLIGHAN J               The accused, Nathan Jai Pompey, was charged with attempted murder and, in the alternative, wounding with intent to do grievous bodily harm. The particulars of the charges alleged against him were that on 24^th September 2002 at Thevenard he attempted to murder Daniel Higgins or alternatively that he unlawfully or maliciously wounded him with the intent to do grievous bodily harm.  Upon his arraignment the accused pleaded not guilty to both charges and the trial proceed by judge alone without a jury. At the conclusion of the trial, I found the accused not guilty of the first charge and guilty of the second charge and indicated that I would publish my reasons for those verdicts at a later time.  I now proceed to do so.

   Background

2. The evidence clearly establishes that David Higgins was attacked with a knife outside the house premises at 7 Penna Street, Thevenard at about 10.00 pm on 24^th September 2002. He suffered a severe wound to the left side of his head.  The instrument which caused the wound penetrated his skull and brain.  He sustained severe injuries which have resulted in serious brain damage.  Later I mention his injuries and their sequelae.  I merely mention at this stage that the attack upon Mr Higgins caused grievous bodily harm.

3. The prosecution called a number of witnesses who described an incident at the house at Penna Street and what had occurred at the house beforehand. There are significant differences in the evidence of some of these witnesses but the following matters were clearly established.

4. The house at Penna Street was occupied by Ms Berris Betts, her partner, Mr Marc Cooke and Mrs Betts’ young children.  There was a gathering of friends and acquaintances at the house during the day through to the night of 24^th September 2002.  At that time, Mr Kerry Dwayne Betts, a brother of Ms Betts, who is also known as Borga, was living at the house.  Mr Higgins was, at the time, a few days short of his twenty-first birthday.  He attended the gathering, as did the accused who at the time was aged 18 years.  Those present were all Aboriginal persons except Mr Higgins and possibly Mr Cooke.  They are all young men and women.  A considerable amount of alcohol was consumed and nearly all of those present were substantially affected by liquor, including Mr Higgins and the accused.  Also some of them consumed marijuana at times during the day and the evening.  Later I shall refer to the evidence of witnesses who were the participants in the gathering.

5. Mr Higgins was very intoxicated.  His mother called at the house at about 9.30 pm and suggested that he accompany her home.  He agreed but did not do so and remained at Penna Street.  She described his condition as being extremely intoxicated.  Witnesses also describe the condition of the accused as being very intoxicated.

6. At about 10.00 pm, Mr Higgins left the house having said that he was going home.  It is the Crown case that when he left the premises he was attacked by the accused who struck him with a knife to the left side of the head and caused the dreadful injuries.

7. Some witnesses saw parts of the incident and I discuss their evidence later.  It was the prosecution case that the accused attacked Mr Higgins with a knife for no apparent reason and that the circumstances justify the conclusion that when he caused the wound he intended to kill Mr Higgins or, in the alternative, cause him grievous bodily harm. It was the defence case that the accused had no memory of being at the house on the night of 24^th September 2002. He was intoxicated. Also that it is not possible, with certainty, to ascertain precisely what occurred as the witnesses to relevant matters were also intoxicated and therefore unreliable, and that in all events it could not be proved that the accused had the required specific intention for the charge of attempted murder.

   Approach

8. When considering the evidence and addresses relating to issues in the trial, and in my deliberations, I kept in mind the following matters.  The accused is presumed to be innocent unless and until the evidence led has satisfied me beyond reasonable doubt that he is guilty of the charge under consideration, or any other alternative charges, which may have to be considered.  The burden of proving the guilt of the accused of any charge rests upon the prosecution.  Unless I am satisfied of his guilt on any charge to that standard, I am required to return a verdict of not guilty.  There is no burden of proof upon the accused.  He does not have to prove any relevant defence or explanation consistent with innocence.  If he raises a defence, the burden is on the prosecution to disprove it or show that it is irrelevant.  Similarly, if the accused makes or points to an explanation which is consistent with his innocence, he does not have to prove it, as it is for the prosecution to disprove or show that it is irrelevant, otherwise the prosecution will not have proved its case.

9. I reminded myself that the accused cannot be found guilty of any charge unless it is proved beyond reasonable doubt.  It is not enough for the Crown to show a mere suspicion of guilt or that the accused is probably guilty.  My decision must be made in a reasonable and sensible way.  If at the end of the case I am left with a reasonable doubt about the guilt of the accused, a doubt reasonably arising on the evidence, then I must give the benefit of that doubt to the accused and find him not guilty.

10. This stabbing of Mr Higgins is without question a very great human tragedy.  He is a young man aged 22 years and, as have I mentioned, he sustained a severe injury to his skull and brain resulting in severe brain damage. He has suffered devastating consequences.  No doubt his family and friends also suffer because of his condition and what has happened to him.

11. The accused is a young Aboriginal man aged 18 years.  He had barely attained that age when Mr Higgins was stabbed.  The present circumstances of Mr Higgins obviously caused sympathy.  The life of a young man has been greatly compromised and he is likely to suffer from his severe disabilities for the remainder of his life.  I concluded that he was greatly intoxicated at the time of the incident.

12. Sympathy was also evoked for the accused and his family and friends.  He faced very serious charges and the result of this trial has serious consequences for him.  He too was drinking excessively and some prejudice could be evoked towards all of the persons at the gathering who were also intoxicated.  Some of them smoked marijuana, including the accused, which may also evoke prejudice.  I have not allowed sympathy, prejudice or any other emotional response to influence me in any way in reaching conclusions about matters in issue or as to whether any of the charges have been proved beyond reasonable doubt.  I have not allowed any emotional response to stand in the way of what I have concluded are just verdicts based upon the evidence.

13. Many of the witnesses who gave evidence in this trial were probably in the witness box for the first time in their lives.  Many of them are Aboriginal.  Most of the witnesses who gave evidence about the events on 24^th September 2002 were intoxicated by alcohol, and some by the combination of alcohol and marijuana.  They were asked to recall events which happened in a brief period of time.  I shall mention the salient features of the evidence of witnesses a little later, but I mention that I approached their evidence with great caution.  Another reason for caution is that some of the witnesses did not appear to me to always understand the difference between what they saw and remembered, and what they believed to have happened from what they had subsequently been told.

14. I approached the evidence of the witnesses by seeing what support is derived from the proven facts and circumstances established by the evidence which I have found to be accepted.  In some cases I was able to accept part of the evidence of the witness even though I was not satisfied about another part or other parts.  With respect to all of the witnesses, I considered their evidence in the context of all of the other evidence at the trial which I found to be acceptable.

15. The accused gave evidence at the trial and thereby submitted himself to cross-examination.  I reminded myself that I must pay careful attention to his evidence, and I have done so.  I accept that he was probably under a good deal of strain when giving evidence.  Also, he is a young Aboriginal man and I have carefully scrutinized his evidence in order to make sure that he understood the questions he was asked and that he responded to them without confusion.  I did not detect any problem in his responding to questions, except in relation to one matter which I mention later.  I also reminded myself that the accused was not obliged to give evidence and could simply have put the prosecution to proof and have relied upon any weakness in the prosecution case.  He is entitled to have his evidence assessed, scrutinized and evaluated in the same way as any other witness in the case.  His evidence is not to be disregarded simply because he is the accused.

16. The accused was first spoken to about the stabbing by the police at Bowden, a suburb of Adelaide, at about 8.10 pm on 26^th September.  At first he gave a false name, address, age and date of birth to one police officer, Mr Charlton, and later that night gave his correct name and address.  He said he gave false information because he was scared and “freaked out”.  When asked what he was scared about he was advised by a field officer from the Aboriginal Legal Rights Movement to not answer further questions.  He thereafter declined to do so.  In refusing to answer questions he exercised a legal right, and inference of guilt or other adverse inference is not to be drawn against him for that reason.  Also I have not regarded the false statements by the accused to the police as of significance.   He is a young man and I accept that he may have done so because of panic.

17. I paid careful attention to the addresses of Mr Schapel, who appeared for the prosecution, and Mr Lang, who appeared for the accused.  Although I do not propose to set out in these reasons all of their respective submissions, I have taken them into account.  Their submissions have been of great assistance in resolving matters in issue.

    Police investigation

18. Before turning to the evidence of relevant witnesses, I mention important features of the investigations carried out by the police.

19. First I mention the evidence of Constable Scott who is a community constable with the South Australia Police and is stationed at Ceduna.

20. She went to the house at 7 Penna Street with another police officer.  She could not remember the time when she arrived but she noticed that an ambulance was present.  Mr Leaver is an ambulance officer who lived at 13 Penna Street.  He gave evidence that he arrived at 7 Penna Street shortly after 10.00 pm having been asked to do so by one of the persons at the gathering.

21. Constable Scott saw Mr Higgins lying on the footpath area outside the house.  She saw a number of persons in the front yard of the premises.  She recorded all of their names.  Those present were Connie Richards, Ashley Sharpe, Kirsty Miller, Michael Sansbury, Marc Cooke, Charlotte Trueman, Susan Miller, Dwayne Kerry Betts and Berris Betts.  She formed the opinion that they were all moderately affected by alcohol, except Ms Richards whom, she considered, was very intoxicated.  She knew Mr Higgins and identified him on this occasion.  I accepted her evidence which establishes who was present at the premises shortly after the stabbing and that the accused was not present as part of that group.

22. Other police officers attended the premises later in the night and on the next day.  Detective Hore arrived at about 12.30 am on 25^th September 2002.  He found a knife on a pathway near the front of the house in the front yard.  He took possession of that knife and it was admitted into evidence.  The location where the knife was found was a considerable distance away from the place or the area between the roadway and the front fence, which witnesses referred to as the footpath, where substantial stains in the soil and grass, which appeared to be blood, were found.  There were three such stains to the left of the front gate upon leaving the premises.  Detective Hore estimated the distance from the location of the knife near the house to the bloodstains on the footpath as seven to eight metres.   There was a substantial area of water on the path near where the knife was found.  Detective Hore did not find any bloodstains in the front yard or elsewhere in the premises.  He said that there was no obvious source of the water and did not have any explanation for the water on the path.  None of the witnesses who were at the house, including Berris Betts and Marc Cooke gave evidence about it. Detective Hore ensured that the knife was kept in safe custody.

23. On 27^th September 2002 the accused was examined by Dr Flock at the City Watchhouse in Adelaide and photographs were taken of him by Constable Sanders.  I accept the evidence of Dr Flock about the various signs of injury seen to the hands, left lower arm and both lower legs. According to Dr Flock, some of these injuries could have been caused on the night of 24^th September 2002, but the evidence does not permit a finding to the effect. His shoes were taken by the police.

24. Samples were submitted for DNA analysis.  A stain was found on the mid outer area of the right shoe.  It produced a positive reaction to a presumptive test for blood and was also submitted for DNA analysis.  A complete DNA profile was obtained from that stain which matched the DNA profile of a sample of blood taken from Mr Higgins.  The profile revealed that the stain came from a male person.  The chance of finding a second male person unrelated to Mr Higgins with the same DNA profile is expected to be rarer than one in one billion.  The accused can be excluded as a source of the stain removed from that shoe.

25. I was informed that a presumptive test for blood was conducted on the knife and the result was negative.  DNA was not located on the handle of the knife.

    The injury

26. I mention the evidence of the injury sustained by Mr Higgins.  Whilst Mr Higgins was lying on the ground outside the house at 7 Penna Street, Mr Leaver was contacted by a female whom he could not identify as he did not see her through his door.  He is an ambulance officer and he lived at 13 Penna Street at the time.  He was off-duty and he had an ambulance at his premises.  He went to 7 Penna Street in the ambulance and tended to Mr Higgins who was still lying to the right of the front gate of the premises, as one looks at the house from Penna Street.  He examined Mr Higgins and observed blood squirting from the left temple area of his head.  Mr Higgins had vomited and was unconscious and unresponsive.  Mr Leaver gave immediate attention to him.  Police arrived shortly after Mr Leaver and were followed by another ambulance.  Mr Higgins was taken to the Ceduna Hospital.  I accepted Mr Leaver’s evidence.

27. Dr Olaiya is a medical practitioner who was working at the Ceduna Hospital on the night of 24^th September 2002.  He examined Mr Higgins.  He noted that he was wearing blue jeans and was not wearing a top.  He clamped the blood vessel from which blood was spurting and cleaned, sutured and dressed the wound to Mr Higgins’ head.  He formed the opinion that it had been caused by a sharp instrument.

28. Mr Higgins recovered to some extent and was walking around the room the next afternoon.  However, he was not talking and Dr Olaiya arranged for him to be transferred to the Royal Adelaide Hospital during that day.

29. Dr Tan is a medical practitioner and the senior neurosurgery registrar in the Department of Neurosurgery at that hospital.  She undertook care of Mr Higgins a few days after his admission and thereafter from time to time.  I accept the evidence of Dr Tan which is that Mr Higgins had suffered an external wound in the left temporal area.  CT scans were carried out from time to time.  The wound was through all layers of skin.  The instrument which caused the wound penetrated the skull which at that location is about 8 mm thick, through the subarachnoid space and about five centimetres into the brain in the left temporal lobe.  That area is dominant in a right-handed person and is generally regarded as the area which controls receptive speech which is the ability to comprehend words that are heard or spoken, and to respond appropriately.  She said that Mr Higgins had lost the ability of speech. I accepted the evidence of Dr Tan.

30. Later he suffered an aneurysm due to the trauma of the stabbing and he developed a dense right hemiplegia which is paralysis of the right limbs.  There was an unconfirmed suspicion of meningitis and he also developed gross hydrocephalus.  He suffered a massive pulmonary embolous due to a long period of bed rest.  It is unnecessary for present purposes to describe all of his treatment.  It is sufficient to say that his injuries and their sequelae were very severe and his neurological progress was very slow.  When Dr Tan last saw him he was alert most of the time and able to track with his eyes.  It appears that he can recognise some faces but has no verbal communication.

31. According to Dr Tan, Mr Higgins has only a modest prognosis of improvement.  She thinks he will have permanent problems with speech.

32. Dr Tan expressed the opinion that the angle of penetration of the instrument which caused the wound would have been almost vertical, or at right angles to the skull.  She also said that the injury to the head is consistent with having been caused by the knife found at 7 Penna Street and admitted into evidence.  Her reasons are that the knife has a sharp point, and quite a strong blade with little flexibility.  It has a serrated edge which would enable better purchase on the skull in penetrating it than otherwise would be the case.  The width of the blade is consistent with the width of the internal wound as revealed by scans.

33. I accepted the evidence of these witnesses.

    The evidence of Ms W.J. Miller

34. I mention the evidence of Wyarta Jade Miller.  She is aged 19 years and is an Aboriginal woman.  She was called by the prosecution and Mr Lang objected to her evidence on the ground that it was merely evidence of propensity and therefore was inadmissible.  I heard her evidence on the voir dire so that its relevance and probative value could be assessed.

35. She said that on 21^st September 2002, a few days before the stabbing, she had a party at her home in Ceduna to celebrate the 21^st birthday of her sister.  The party had been at a sailing club and some of the guests had then gone to her house.  She and the accused are cousins and he attended the after party.

36. Ms W J Miller said that she, the accused and about three or four other Aboriginal persons were in the kitchen.  They were all aged around 21 years.  As she was walking out of the kitchen, she heard the accused say, “I feel like stabbing some cunt”.  In cross-examination she acknowledged that she had told the police that the accused had said, “I feel like stabbing someone”.  She said that she could not now remember which word he had used.  She said to him, “Stop talking silly”.  The accused laughed, said he was mucking around and went outside the house.  According to Ms W J Miller, the accused was drunk and he appeared to be having a good time.  She said that she went to bed.  She also said that she had never heard the accused say anything like that on any other occasion.  According to Ms W J Miller, she had only consumed about five or six drinks of spirits at the party at the sailing club.  She took drinks containing spirits back to her house at the after-party where she had one or two drinks.  She said that she was really sober when the accused said the words I have mentioned.

1. Ms W J Miller heard about the stabbing of Mr Higgins and she then mentioned to someone else what she had heard the accused say at the after-party.  Her father is a police officer and she told him what the accused had said.  In cross-examination she said that the words spoken by the accused were part of a conversation he was having with the others in the kitchen. The group was drinking and laughing.  It was a happy occasion.

2. I admitted the evidence and indicated that I would give my reasons for doing so later.

3. On the prosecution case there is no known or apparent motive for the stabbing.  There was no issue between the accused and Mr Higgins before an incident in the kitchen of the house at Penna Street which occurred shortly before the stabbing.  I mention that incident later. The defence of the accused to the charges was not known prior to the defence being presented at the close of the prosecution case.  I made my ruling almost at the end of the prosecution case and no obvious defence had arisen at that time.  At the time of making the ruling, it was not known if the defence was to be that the accused did not stab Mr Higgins, or that he was justified in doing so, or that the stabbing was an accident, or that he did not form the required general or specific intentions to attract criminal responsibility, or otherwise. The prosecution had to rebut any potential defence as part of its own case.

4. I accepted the evidence of Ms W J Miller and concluded that the accused did say the words which she attributed to him. I thought he probably used the word “cunt” and when Ms Miller made her statement to the police used the word “person” but it is not a matter of any significance.  What was significant was that the accused was intoxicated and when inhibitions may have been released or reduced, he spoke of a wish to stab someone. The fact of his expressing that feeling whilst intoxicated only a few days before Mr Higgins was stabbed was relevant to the issue of whether the accused stabbed him, whether he had the required general intention, and depending upon the evidence, the required specific intention required to prove any of the charges which had to be considered. Also, the evidence was relevant as to why an apparently motiveless crime would be committed against Mr Higgins, a crime involving stabbing with a knife.

5. I had regard to the circumstances in which the words were said, including that the occasion appeared to Ms W J Miller to be a happy occasion, but I considered that the evidence was admissible and that its prejudicial effect did not outweigh its probative value. I refer later to the weight which I attributed to the evidence.

   The events at Penna Street

6. Before considering the evidence of the witnesses who were at Penna Street on the night of 24^th September 2002, I say a little more about the need to exercise considerable caution when considering their evidence.  It is not possible to accurately determine the degree of intoxication of any of them.  There was no medical or other scientific evidence to explain the relationship between alcohol and marijuana when consumed together or sequentially.  The evidence of some of the witnesses as to the amount of alcohol which was consumed is likely to be inaccurate and I proceeded on that basis.  As an example I mention the evidence of Ms Betts, who estimated that she alone consumed the equivalent of a bottle of Jim Beam. It seems unlikely that she could have consumed such a large quantity of spirits and only have been moderately affected. Having considered her evidence and assessed its reliability in the context of all of the other evidence, I concluded that it is likely that she consumed less alcohol than she estimated.

7. I carefully assessed the evidence of each of these witnesses and have looked for other evidence which is plainly acceptable and which confirms important features of the evidence of the witness under consideration.  If such evidence is present I more easily accepted the evidence of the witness.  If such evidence is lacking, I have not rejected the evidence of that witness for that reason, but I have further emphasised the considerable caution in assessing the evidence which I have mentioned.

8. There were two main incidents at the house at Penna Street on 24^th September 2002, which I refer to as the kitchen incident and the stabbing incident.

   The kitchen incident

9. Not long before the stabbing incident, there was an incident, possibly two incidents, in the kitchen.

10. According to Ms S V Miller she was in the kitchen with Mr Sharpe, Mr Morrison, Mr Higgins and the accused.  Ms Miller is an Aboriginal woman who is aged 20 years.  She said that during this evening she was drinking Jack Daniels and Jim Beam.  She said she was drunk but not really drunk.  She said, “Drunk to know what I seen and what I heard”.  I accept that what she meant to convey by this evidence was that she was not so drunk that she could not know what she saw and heard.  Also she smoked three caps of marijuana through a bong.  The evidence does not disclose when she had each drink or smoke but I accept that she was significantly intoxicated by alcohol and marijuana when the incident occurred in the kitchen.

11. Ms S V Miller said that the accused and Mr Higgins were standing near the door into the kitchen and there was a disagreement between them about something.  The accused grabbed a knife from the kitchen sink and held it against Mr Higgins’ throat.  They argued but she did not hear what they were saying.  She told the accused to “Leave it” and go out the back and he did so.  She did not see any reason for the disagreement.  She described the way in which the accused held the knife.  He had his elbow against the upper chest of Mr Higgins with his forearm, hand and the knife pointing in the direction of the doorway.  Mr Higgins said that he did not want to argue.   Both he and Ms S V Miller said “Wandy”, which she said means “leave me alone, leave that there”.  When the incident was over, Mr Higgins said he was going home and that he would see them in the morning when he picked up Mr Cooke for work.  According to Ms S V Miller, Mr Morrsion had earlier left the kitchen and was not present when the incident occurred.

12. She described the knife as a little knife with a normal brown handle with a blade about eight inches long which, in a general way, fits the description of the knife which was later found on the pathway by Detective Hore.  She was shown that knife and said that it was similar to the knife taken from the sink by the accused, except that it did not have a serrated blade.  The knife found by Detective Hore did have a serrated blade.  She said that she did not see the knife again.  She did not see the accused after Mr Higgins left.  She stayed in the room drinking.

13. Mr Morrison is an Aboriginal youth aged 16 years. He was at the house at Penna Street during the day and at night on 24^th September 2002. I mention him and his evidence about the stabbing later. At this stage I merely mention his evidence about an incident in the kitchen. He said that the accused came into the kitchen as Mr Higgins was about to go home. The accused grabbed a knife. Mr Morrison told him to put it down and he did so. He did not describe the incident of the accused holding the knife near Mr Higgins’ throat related by Ms S V Miller. It seems likely that he was referring to a different incident because Ms S V Miller, whose evidence I accepted, was that Mr Morrison was not present when the accused used the knife.

14. Mr Sharpe is a young Aboriginal man aged 23 years.  He said he went to the house at about 4.00 pm.  He described himself as being a moderate alcoholic which, according to him, means that he consumed alcohol more or less each day as he became stressed and drank the stress away. He said he would drink a little less than a six pack of beer each day. However, he had not had a drink of alcohol for two days before 24^th September 2002.

15. Whilst at the house he said that he had one and a half cans of full strength beer.  He did not feel like drinking any more alcohol.  He said that he felt tipsy. He described that condition as feeling happier in himself.

16. Mr Sharpe knew the accused and Mr Higgins.  He said that he was in the kitchen with them later in the evening.  He thought there were also two other men and two women.  The accused was trying to get them to form a circle.  He tried to head butt Mr Sharpe who avoided the blow.  He did not know the reason.  The accused appeared a little angry and upset.  He did not know if Mr Higgins was present at that time.  He said this incident occurred when it was “going on dark”.  He did not know the names of the persons in the kitchen at that time.  He left the room and he did not see any incident involving the accused and Mr Higgins in the kitchen.  He then went outside with Mr Betts.  He said that this incident occurred about 10 to 15 minutes before he went outside.

17. The accused gave evidence. He said that he had no recollection of the events of the day and night of 24^th September 2002 and, in particular, of any incident in the kitchen.

18. I accepted the evidence of Ms S V Miller and found that the incident which she described involving the accused and Mr Higgins occurred much as she described. I also accepted the evidence of Mr Sharpe. I concluded that he was not intoxicated to any substantial degree. I thought he was a careful and reliable witness despite inadequacies in his evidence in the context of the stabbing incident which I mention later. I found that the accused did behave aggressively towards him as he described and that the accused appeared angry and upset. I concluded that the incident occurred earlier in the evening before the incident described by Ms S V Miller and that it is likely that Mr Sharpe had left the kitchen before that incident occurred. I appreciated that Ms S V Miller said that Mr Sharpe was present in the kitchen when the incident, which she described, occurred but I thought she was mistaken about that matter. He was outside with Mr Betts when Mr Higgins left the house. It is likely that Mr Higgins did so shortly after the incident with the knife which would explain why Mr Sharpe did not see it.

19. I found that the accused behaved aggressively towards Mr Higgins and Mr Sharpe in the kitchen in two separate incidents, for no apparent reason, and that his behaviour to Mr Higgins involved the use of a knife.

    The stabbing incident

20. After Mr Sharpe left the kitchen he went outside with Mr Betts.  They stood in the front yard.

21. Mr Betts is an Aboriginal man and is aged 22 years.  He smoked marijuana during the early part of the day and consumed beer during the day and evening.  He described his condition as being “a bit drunk”.

22. Mr Higgins is a friend and he also knows the accused.  He did not go into the kitchen.  He went outside with Mr Sharpe.  They stood in the front yard talking.  According to Mr Betts, Mr Higgins came outside through the front door of the house.  He said he was going home and would see them on the next day.  Mr Betts said that he looked “a bit angry”.  He walked to the street, turned and walked towards his house.  The accused left the house through the front door.  He was walking really fast and approached Mr Higgins.  He said, “Come on I’ll fight you”.  There was a scuffle.  According to Mr Betts, the accused punched Mr Higgins in the face and then punched him again.  Mr Higgins said, “Come on then, I’ll fight you”.  “All right then, I’m not scared of you, Nathan, I’ll fight you” and he took off his jumper. I mention that Mr Sharpe did not recall Mr Higgins behaving in this way and there was no evidence as to whether a jumper or any other upper body garment of Mr Higgins was found at the scene.

23. Mr Betts said that the next thing he remembers was Mr Higgins falling to the ground.  He said that at this time he was about 10 feet away.  He went to Mr Higgins and saw blood coming from the side of his face.  He pushed the accused away and told him to stop it.  The accused swung at him and he jumped back and the attempted blow missed him.  Mr Betts said: “Don’t worry about it man” and the accused then ran away towards the Thevenard Football Club at the oval.  Mr Betts went inside and told his sister what had happened and then went and told Mrs Higgins.

24. Mr Sharpe said that when he was outside the house with Mr Betts, there was no-one else outside the front of the house.  He saw the accused punch Mr Higgins in the head about three or four times and then Mr Higgins dropped to the ground.  He had not retaliated.  He had not seen either of them leave the house.  He said that he was at the front of the house and they were about 40 feet away from him.  The blows struck Mr Higgins on the left side of the head, generally in the region of the ear.  According to Mr Sharpe, the accused then took a metal object out from his trousers.  He said it was a metal object because of the metal “hitting off” the light.  He could not describe the object.  He did not know its colour or its length.  He lent over Mr Higgins.  Mr Sharpe could not see what then happened because it was dark.  He said he saw the accused stand up and wipe something off the metal object.  He then ran across the road to the oval.  Mr Sharpe then went over to Mr Higgins and saw blood on his head.  He said that he had seen blood on Mr Higgins’ head before he fell down.  He did not see the metal object after it was wiped.  It was in the accused’s hand when he saw it for the last time.  He did not see anyone else hit Mr Higgins.  He did not see Mr Morrsion outside the front of the house and he did not see him at the house during the night.  He said he could see the incident clearly.

25. According to Mr Sharpe, the accused jumped into a motor car near the oval and when others came out of the house, the accused yelled abuse at them.

26. When cross-examined, Mr Sharpe was asked about the statement he had made to Detective Puckeridge who was later called to prove parts of the contents of the statement.  He made that statement on 20^th October 2002.  He did not tell Detective Puckeridge about seeing the accused use a metal object.  He said that he was shocked after the incident.  Earlier in his evidence he said that he did not know what was meant by his being “off to the side” of the incident.  That expression was used in his statement to Detective Puckeridge.  Mr Sharpe acknowledged that he told Detective Puckeridge that he saw Mr Higgins try and get up from the ground.  He also acknowledged that prior to giving evidence at the trial he had not told anyone about seeing the accused wipe anything on his clothing.  He said that he had probably forgotten to say anything about it.  Also, he acknowledged that until he gave evidence, he had not mentioned to anyone that he had seen a metal object.  He said that he more or less started to remember that matter when he was giving evidence.

27. Mr Sharpe said that he did not see the accused throw anything away and there were no other persons near the accused and Mr Higgins.  He said that he could not remember if he smoked marijuana on that night, but he acknowledged that he was smoking that drug at that time. He then acknowledged that if the drug was at the house at that time, as was established by other evidence, he probably would have consumed some.  Mr Sharpe said that he saw police at the house after the incident but he did not speak to them because he was scared and shaken.  He denied the suggestion that he did not say anything to the police when he made his statement about seeing the metal objects and the accused wiping any object because he did not remember seeing them.  He said that he did see them.

28. It was submitted by Mr Lang that the evidence of Mr Betts and Mr Sharpe about the incident in the street should not be accepted because they were intoxicated and their evidence is unreliable.  Their evidence discloses that there had been talk between members of the Aboriginal community in Thevenard about what had happened to Mr Higgins.  Consequently, it is not possible to determine what each of these witnesses saw, and can accurately remember, and whether what they were now relating was based upon information given to them by other members of the community. He submitted that it was dark at the time and they could not have seen what they now claim they did see.  With respect to Mr Sharpe, critical features of his evidence, seeing the metal object and the accused wipe it after Mr Higgins was on the ground, were not recounted by him to anyone until he was giving evidence.  Consequently, it was necessary to consider whether he had reconstructed what happened after he became aware that Mr Higgins had been stabbed.  There is another matter, that is the evidence of Mr Sharpe that the accused jumped into a motor vehicle after moving across the road.  Mr Betts did not see this happen.

29. I mention the evidence of Ms Betts. I found her to be a reliable and accurate witness, even though I do not think she could have consumed the large amount of alcohol which she said she had consumed. She was in a bedroom at the house with Mr Cooke and her son when the stabbing occurred. She was not aware of any unpleasantness or incident in the kitchen. Mr Betts spoke to her and she went outside and saw Mr Higgins on the ground. She saw the accused running away and into the Thevenard Football Club. She could not see if he had anything in his hand. She saw in the vicinity of a red Commodore motor vehicle but he did not enter it. He walked  on to the oval.

30. Mr Cooke also said that he did not see or hear any incident in the kitchen before the stabbing incident. He and Mr Higgins worked together. Mr Higgins went to the bedroom and said goodnight. A short time later Mr Betts spoke to Mr Cooke, leading him to go outside. He recalled seeing Mr Betts, Mr Sharpe and someone else outside when he left the house but not the accused. The evidence does not disclose the identity of the third person whom Mr Cooke saw, but that person may have been Mr Morrison whom I again mention shortly.

31. I carefully considered these submissions and I reached the following conclusions.  I accepted the evidence of both Mr Betts and Mr Sharpe.  I concluded that both of them were honest and truthful witnesses who were doing their best to accurately recall what they saw.  I do not think either of them were sufficiently intoxicated for their appreciation of what occurred to have been compromised.  I accepted that Mr Betts had consumed marijuana much earlier in the day and much of its effect upon him had passed.  I found that Mr Sharpe was not much affected by alcohol as he had consumed very little over a period of some hours.  If he did smoke marijuana, it did not affect his power of observation and his ability to recall what he saw.

32. The evidence of both men as to what happened is supported by other evidence.  They were the only persons at the house who were outside when Mr Higgins and the accused left the house.  Mr Higgins was uninjured when he left the front yard.  He was then stabbed and severely injured.  Blood on the ground was found in the location where these two witnesses said the incident occurred.  Mr Betts said that he did not see the knife.  If he was reconstructing what happened or was repeating talk in the community, it is likely that he would say something about the instrument used in the stabbing.

33. I accepted that Mr Sharpe was scared and shaken after the incident which may explain why he did not volunteer to the police at that time, and later, all that he saw.  His failure to mention the two matters which I have mentioned is important when assessing his truthfulness and reliability as a witness, but it has not caused me to doubt his evidence.

34. I found that even though they described the incident between the accused and Mr Higgins differently, those differences did not cause me to doubt their truthfulness, reliability and accuracy in a general way. Neither of them was so intoxicated that no reliance could be placed upon the evidence. The common features of their evidence are significant. They were both outside the house. No-one else was outside when the attack occurred. Mr Higgins was on the footpath walking towards his home. There was no injury to Mr Higgins at that time. The attack occurred in the location where stains on the ground consistent with blood stains. Both witnesses spoke of multiple blows, of Mr Higgins falling to the ground and being seen to have suffered a severe wound to the head. Both said that there was no-one else present and that the accused ran away towards the Thevenard Football Club.

1. These consistencies in their evidence establish what undoubtedly occurred. Mr Higgins left the house intoxicated but uninjured. The accused followed soon after. The accused attacked Mr Higgins. No-one else was involved. During the course of that attack, Mr Higgins was stabbed.

2. Later I mention other evidence which confirms that the accused was the assailant, but I would have made that finding on the evidence of Mr Betts and Mr Sharpe alone if there had been no other evidence.

3. Also, I mention that the inconsistencies in the evidence of these two witnesses are understandable in view of the suddenness and ferocity of the attack, and that emotional effect it must have had on each of them. The inconsistencies suggest that each of them was recounting the incident without influence from the other.

4. I now turn to the evidence of Mr Morrison.  He is a first cousin of the accused.  He was at the house on 24^th September 2002 and claims to have seen the accused stab Mr Higgins and to have tried to prevent it.  I found him to be an unreliable witness and I have not acted upon his evidence about the stabbing incident.

5. His aunt lived across the street from the house at Penna Street. When he first gave evidence, he said that he could not remember who was at the house. He said that he went to the house on two or three occasions during the day and night and that he last left the house at about 9.00 pm. He said that he saw the accused in the street but he could not remember if it was during the afternoon or the evening though he thought the latter. He said that he saw the accused at the house but he could not remember where in the house he had seen him. He saw Mr Higgins in the street and at the house. He said that when he was across the road at his aunt’s houses, he saw fighting and heard “everyone screaming” at which he ran across the road and tried to break it up. He said that everyone was trying to break it up. When asked if he saw anything happen between Mr Higgins and the accused, he said “Not really”. When asked if he saw anything happen between them outside the house, he said he did not think so and he could not remember. He then said that he saw fighting and he could not see who was fighting. He had been smoking marijuana and drinking alcohol. He said he could not remember if he saw a knife during the fighting.  It was too dark. He said that he tried to break up the fighting by “pushing them both away”.

6. According to him, the fighting was wrestling. He said that two persons involved and they were Mr Higgins and the accused and that everyone was there at that stage trying to break it up. He mentioned Ms S V Miller, Mr Betts and “Nuigu” as being involved in trying to break up the fight. The evidence does not disclose the identity of the person called “Nuigu”. Mr Morrison said that the fight was broken up and he did not see where the accused went. He saw Mr Higgins on the ground bleeding but he did not know from where because it was dark. He did not see anything which caused him to bleed. He said he did not see a knife anywhere and he did not see anyone strike or threaten anyone else with a knife.

7. As his evidence progressed, he appeared to have a much better memory of what occurred than at the commencement of his evidence. He had been cross-examined by Mr Schapel on the voir dire in order to have him declared a hostile witness but the application was withdrawn. I have not had regard to the evidence which he gave on the voir dire.

8. Later in his evidence he said that he left the house and crossed the road to the house of his aunt. He heard Mr Higgins say that he would see the persons at the house during the day. Later, he said he was at the house when he heard Mr Higgins say that he was leaving the house. As I mentioned earlier, he said that he had seen an incident in the house in the kitchen when the accused picked up a knife. Mr Morrison said that he told him to put it down and he did so. He said he could not remember if the accused did anything with the knife.

9. Mr Morrison said that he was outside his aunt’s house when he heard everybody screaming. He said and heard Mr Higgins trying to calm the accused. Everyone was trying to push them apart. He then went over the road to them and was trying to push Mr Higgins and the accused apart. He said that he was standing between them and he saw something out of the corner of his eye go straight past his eye which he said was a knife. The accused had the knife and he did not see him do anything else with it. Later in his evidence he said that he did not see a knife, only “a shiny little thing”. He said he stepped back because he did not want to be stabbed himself. According to Mr Morrison, Mr Higgins did not at any time do anything to the accused.

10. I did not accept the evidence of Mr Morrison about any of those matters except that he did not see Mr Higgins do anything to the accused.

11. His evidence as to what happened in the stabbing incident is totally different to the evidence of Mr Betts and Mr Sharpe, and I preferred their evidence to that of Mr Morrison. I rejected his evidence that he was between Mr Higgins and the accused, trying to separate them when the stabbing occurred and that others were trying to separate them. I found that only Mr Betts and Mr Sharpe were outside the house when the incident occurred and it happened suddenly and without warning. There was no opportunity for anyone to intervene.

12. It was unnecessary to decide why Mr Morrison told the story of his intervention. If he had been involved in that way, he would have been seen by Mr Betts and Mr Sharpe. It is possible that he crossed the road to the location of the stabbing after it occurred because Mr Cooke, whose evidence I accepted, said that he thought there was another person outside the house apart from Mr Betts and Mr Sharpe, but I was satisfied that he was not present when the incident occurred.

13. There is other evidence, circumstantial in nature, which supported the conclusion that the accused stabbed Mr Higgins. I identified each of these facts and circumstances, which I mention shortly, and then decided that each of them had been proved beyond reasonable doubt. There was no contest about any of them, nonetheless, I considered the evidence and reached my conclusions about each matter. I then considered what inference or inferences could be drawn from each of the circumstances when considered alone and together. I did not draw any inference against the accused as to his guilt, or which would otherwise be unfavourable to him, if an inference could be drawn which was favourable to him as a reasonable possibility.

14. Mr Higgins was not aggressive in the kitchen, although I accepted that it is a reasonable possibility that he resented the threat with the knife made to him by the accused. No-one at the house, apart from the accused, was aggressive to Mr Higgins or anyone else. The accused was also aggressive to Mr Sharpe. After the incident in the kitchen, Mr Higgins told Mr Cooke and others that he was going home, and he left the house to do so. He was followed by the accused.

15. I have mentioned that the stain found on the right shoe of the accused contained DNA, the profile of which matched the DNA profile of Mr Higgins. The accused acknowledged in his evidence that he was wearing that shoe on the night of 24^th September 2002.

16. The accused left the vicinity of the house at Penna Street immediately after the stabbing occurred and ran away. All of the other persons present at the house on that night remained at the house and were seen by Constable Scott, with the exception of Mr Morrison, who returned to the house of his aunt across the road. At this time the accused was living with his mother at Thevenard but he did not go to her house after he left Penna Street. He gave evidence that his mother lived at Railway Terrace at Thevenard which is about a five to 15 minutes walk from Penna Street. He stayed the night at the house of a cousin in Ceduna which was about three kilometres from Thevenard. The accused said that it would take about one and a half hours to walk that distance depending on how fast or slow he walked. He did not return to Penna Street the next day.

17. The accused said in evidence that he did not go to his mother’s house because he did not want to bother her at night because she goes to sleep and he did not always stay at her house. However, the evidence of Mr Leaver established that the stabbing incident occurred a short time before 10.15 pm when he attended and rendered assistance to Mr Higgins.

18. I concluded that the accused did flee from the scene of the stabbing and deliberately chose not to stay at the house of his mother. He did so because he had stabbed Mr Higgins and there was no other reason for him to run away from Penna Street. I reached that conclusion even though he was intoxicated to some extent. I regarded his running away as some indication of consciousness on his part that he had stabbed Mr Higgins and that he was aware that he had committed a serious criminal offence. I rejected the possibility that he ran away because of fear that he could be wrongly accused. There was no one else who could have been responsible for the stabbing. I rejected the possibility that he was not the person who stabbed Mr Higgins and had run away because of panic, fear, distress or some other emotional response to Mr Higgins having been stabbed by someone else.

19. The accused went to Adelaide from Ceduna on the evening after the stabbing. He paid for Mr Morrison to accompany him. I did not consider that there was anything sinister about his assisting Mr Morrison in that way as Mr Morrison wanted to go to Adelaide and the accused merely provided that assistance. They travelled with two other men.

20. According to Mr Morrison, at one stage during the journey, the accused was crying and said to himself, “I shouldn’t have done it”. Mr Morrison said he was tired and he went to sleep and did not see or hear anything else.

21. The accused’s evidence was that after he woke up at his cousin’s house during the morning after the stabbing, she told him that the police were looking for him. She said to him that he had hurt someone really badly and that this person could die. His evidence was that he did not believe her because he could not remember. He said he could not remember where he was during the previous night. He said that he could have asked his cousin what he had done but he could not remember her response. Also, he said that he just “freaked out” and he did not make any enquiries about what he was alleged to have done.

22. Having considered each of these matters separately and together, I considered that an inference could be drawn that combined, this evidence confirmed that the accused stabbed Mr Higgins, and a conclusion to the contrary as a reasonable possibility could be excluded beyond reasonable doubt.

23. I did not accept the evidence of the accused that he could not remember whether he was told that he had stabbed Mr Higgins or whether Mr Morrison had mentioned to him what had happened. It is incredible that the accused did not ask his cousin, Mr Morrison or others, what he was alleged to have done if he had no memory of the events of the previous night as he claimed. It is probable that he did not seek information because he was well aware of what he had done. I concluded that he knew he had stabbed Mr Higgins and that is why he left Ceduna and went to Adelaide. I accepted that he probably regretted what he had done and that is why he cried and said what he did whilst on the bus.

24. There is one remaining matter. According to the accused, he went to Adelaide because he was scared as a result of what his cousin told him. He said that other people may have told him that the police were looking for him. He said he could not remember if Mr Morrison told him what had occurred the previous night.

25. I accepted the evidence of Mr Morrison as to the demeanour of the accused on the bus and what he heard him say, even though I did not accept his evidence as to what occurred in the stabbing incident. The accused acknowledged that he was distressed before catching the bus and said that he was crying on the bus because of what he had been told that he had done. However, he denied that he said that he should not have done it. I rejected that evidence and preferred the evidence of Mr Morrison as to this matter. The two young men were friends and were travelling together to Adelaide. There is no apparent reason for Mr Morrison to make up a story about what the accused said. It is common ground between them that the accused was upset and crying. It is consistent with his emotional state that he would say what Mr Morrison alleges that he said.

26. This evidence must not be taken too far. The accused may well have been upset if he had been told that he had injured someone, but it is consistent with his knowing that he had stabbed Mr Higgins and being remorseful at having done so.

27. For all of these reasons, I concluded beyond reasonable doubt that the accused stabbed Mr Higgins and caused the horrific injuries which he sustained.

28. Before turning to my conclusions about the important question of whether criminal responsibility attached to him for that conduct, I mention my conclusions about whether the knife found outside the house and admitted into evidence was the knife used in the stabbing. I could not be satisfied beyond reasonable doubt that it was the knife. It was found a distance away from the location where the stabbing occurred. The evidence does not disclose that distance but perusal of photographs of the house, the footpath area, the place where the knife was found and the location of the apparent blood stains, suggests that the distance could have been 20 feet to 30 feet. Mr Betts said he was about 10 feet away from the incident. I concluded he under-estimated the distance. Mr Sharpe said that he was about 40 feet away from Mr Higgins and the accused when he saw the incident. I did not accept that this estimate was necessarily accurate but it is an indication that the distance was substantial.

29. There was no evidence as to how the knife came to be at the location where it was found. Neither Mr Betts nor Mr Sharpe said that they saw the accused throw away the knife used in the stabbing. When he ran away, the accused ran in generally the opposite direction to where the knife was found so he could not have dropped it after the stabbing. I was informed that a spot of blood or DNA was found. I was again informed that there was no DNA on the knife but the evidence is not clear as to what tests were undertaken. Ms SR Miller thought that the knife which was found was different to the knife which the accused had used in the kitchen. There was water on the path adjacent to where the knife was found. The presence of the water was unexplained. Ms Betts said that her children sometimes took butter knives from the kitchen to outside the premises. I thought it was possible that they could have taken the knife outside.

30. Having considered all of these matters, I was not satisfied that the knife admitted into evidence was the knife used in the stabbing. It could have been used in the stabbing. Dr Tan expressed the opinion that the wound was consistent with having been caused by the knife admitted in evidence.

31. I took the view that the Crown did not have to prove that the knife was used in the stabbing as it was proved beyond reasonable doubt that the accused stabbed Mr Higgins and that some instrument of similar size to the knife must have been used.

    Intention and intoxication

32. Before turning to the law relating to particular charges, I need to say something about intention and intoxication. When considering both general and specific intention, I kept in mind that an intention may be formed in an instant. A crime does not have to be planned in advance. It does not have to be pre‑meditated in that sense. It is the state of mind of the alleged offender when the stabbing occurred which is relevant. An intention may be formed on the spur of the moment and, if so, that is sufficient.

33. As has been mentioned, there was considerable consumption of alcohol at the house at Penna Street on the day and night of 24^th September 2002. I shall later mention the evidence of the accused’s drinking and consumption of marijuana, observations about his degree of intoxication and other evidence as to that matter.

34. Of course, intoxication is not an excuse for a crime. Very often people do things when they are intoxicated which they would never do when sober. Intoxication by alcohol and drugs can release or remove inhibitions which would normally be under the control of a sober person. A person has to answer, when sober, for what he does when drunk.

35. However, intoxication may affect criminal responsibility under certain circumstances. It may prevent the exercise of the will so that an act is not a deliberate, conscious or voluntary act. In that circumstance, the person committing the act is like an automaton.

36. Intoxication may have a bearing on criminal responsibility by preventing the specific intention being formed which is essential for criminal responsibility. Where the charge is attempted murder, intoxication may prevent the formulation of the required specific intention to kill, or cause a reasonable doubt about it. The same must be said about the specific intention required for the crime of wounding with intent to cause grievous bodily harm.

37. Also, intoxication may be relevant to deliberation about other matters. When considering what findings of fact can be made, the degree of intoxication of witnesses, as well as the accused, may be relevant. These recollections and reactions to incidents may be affected by intoxication.

38. I had regard to all of these matters when reaching my verdicts.

    The Law

39. The evidence discloses that only one stabbing incident occurred and, as I have mentioned, I found that the accused stabbed Mr Higgins in the head with a knife which caused severe injury to him. There were two other charges which I had to consider, apart from attempted murder and wounding with intent to cause grievous bodily harm which were charged on the Information. They were attempted manslaughter and unlawful wounding. Section 270AB of the Criminal Law Consolidation Act 1935 provides:

    “(1)   Where -

    (a)    a person attempts to kill another or is a party to an attempt to kill another; and

    (b)   he would, if the attempt had been successfully carried to completion, have been guilty of manslaughter rather than murder, he shall be guilty of attempted manslaughter.

    .............

    (3) If on the trial of a person for attempted murder the jury is not satisfied that the accused is guilty of the offence charged but is satisfied that the accused is guilty of attempted manslaughter, the jury shall acquit the accused of attempted murder but may find him guilty of attempted manslaughter.”

    Section 24 of the Act provides that, in the present circumstances, a verdict of unlawful wounding may be returned if I was satisfied that the accused is guilty of wounding Mr Higgins but the prosecution had not proved beyond reasonable doubt the charge of wounding with intent to cause grievous bodily harm.

40. I first mention the law relating to the charge of attempted murder.  The prosecution must prove beyond reasonable doubt that the accused stabbed Mr Higgins by a conscious, deliberate and voluntary act, that at the time he stabbed him he intended to kill him, that the stabbing was unlawful and that what he did constituted an attempt to kill Mr Higgins.

41. An attempt is committed when a person takes some step or steps towards the commission of a particular offence, which go further than mere preparation to commit the offence, and which may fairly be described as immediately connected with the offence.  The accused cannot be guilty of attempted murder unless he intended to commit the crime.  The prosecution must prove that there was an intention to stab, and also the taking of some step or steps towards the commission of the crime which goes further than mere preparation. I had no doubt that the conduct of the accused amounted to an attempt so this element of the charge was proved.

1. The next element of the charge of attempted murder is that the accused stabbed Mr Higgins by a deliberate, conscious and voluntary act.  Merely holding the knife and a wound or wounds being caused during an altercation between the two men would not be sufficient.

2. I was satisfied beyond reasonable doubt that the stabbing was not accidental and that the only issue with regard to this element of the charge was whether the accused was so intoxicated by alcohol and marijuana that the stabbing was not due to an exercise of his will, and was therefore not a deliberate, conscious and voluntary act on his part. I accepted that the accused had been drinking alcohol during the day and night of 24^th September 2002 before the stabbing. He said in evidence that he started drinking early in the morning. He drank Jim Beam. He said he felt drunk in the morning and “blanked out” because he was drinking and smoking marijuana.

3. The evidence does not establish previously how much alcohol or marijuana the accused consumed and when. However, there is evidence which enables an assessment to be made of his degree of intoxication at the time of the stabbing. First, there is the evidence of others who were at Penna Street. Mr Betts said that he could not say if the accused was intoxicated. Mr Sharpe said that he could not say whether the accused appeared drunk or sober. It may be expected that if the accused was grossly intoxicated, these witnesses would have noticed. Mr Cooke said that the accused was tipsy. He was no more or less drunk than the others at the house.

4. When Mrs Higgins saw her son shortly before the stabbing, she said that he was with other men. Mr Betts said that he and the accused were with Mr Higgins at that time and they had been to the hotel to acquire more alcohol. In cross-examination, he said that they went to the hotel in the morning but I accepted that they had done so shortly before Mrs Higgins saw them. The incident in the kitchen described by Mr Sharpe, involving himself and the accused, afforded him every opportunity to see if the accused was substantially affected by alcohol but he said he could not say if he was drunk or sober.

5. When Mr Morrison told the accused in the kitchen to put the knife down, he did so. I accepted the evidence of Ms S V Miller that when she told the accused to end the incident with the knife in the kitchen, he did so.

6. As I have mentioned, after the stabbing incident, the accused ran away. He did not stay with his mother and went to Ceduna.

7. All of these matters indicate that the accused was aware of his situation, and his intoxication, such as it was, did not cause him to act without the direction of the mind or will. I found it proved beyond reasonable doubt that when the accused stabbed Mr Higgins, he did so by a deliberate, conscious and voluntary act.

8. I now turn to the third element of the charge. I accepted that the accused had shown anger or resentment to Mr Higgins whilst in the kitchen and had not calmed down before the stabbing incident. The blow which he struck with the knife was a hard blow. Nevertheless the accused was intoxicated to some extent. He may not have become angry if sober. He quickly followed Mr Higgins out of the house and immediately attacked him, first with his fists and then with the knife. It is reasonably possible that the intention to stab Mr Higgins occurred almost on the spur of the moment. The two men had been on friendly terms. There was no animosity between them before that night.

9. I have mentioned that I accepted the evidence of Ms W J Miller as to the words uttered by the accused at her house on 21^st September 2002 and that he was drunk. The accused denied that he had said those words. I did not accept this evidence. He said that he remembered the occasion when he was at Ms W J Miller’s house. He said he was drunk but he would not have said those words because he had no reason to say it. He explained that she must have misheard what he did say. He said he could not remember if he spoke to Ms W J Miller on that occasion or if she said to him, “Stop talking silly”. He said he was really drunk. I accept that the accused had the idea of stabbing someone on his mind on that occasion, but I did not regard that matter as indicating that he had an intention to kill someone. I accepted that he had thought about injuring someone.

10. In my view, the provisions of s 268 of the Criminal Law Consolidation Act had no application to the views of either general intent or specific intent in the present circumstances. That section provides:

    “268. (1)If the objective elements of an alleged offence are established against a defendant but the defendant's consciousness was (or may have been) impaired by intoxication to the point of criminal irresponsibility at the time of the alleged offence, the defendant is nevertheless to be convicted of the offence if it is established that the defendant -

    (a)formed an intention to commit the offence before becoming intoxicated; and

    (b)consumed intoxicants in order to strengthen his or her resolve to commit the offence.

    (2)    A defendant's consciousness is taken to have been impaired to the point of criminal irresponsibility at the time of an alleged offence if, because of impairment of consciousness, a subjective element of the alleged offence cannot be established against the defendant.”

11. I was not satisfied that the accused had formed an intention to stab someone before he came intoxicated, or that he consumed alcohol or marijuana to strengthen his resolve to commit the offence of attempted murder or wounding with intent to cause grievous bodily harm. Furthermore, I did not accept that it was a reasonable possibility that the consciousness of the accused had been impaired due to the intoxication when he stabbed Mr Higgins.

12. During cross-examination, the accused said that in September 2002 he understood that if he stabbed someone to the head, the person could possibly be killed. He said that, at that time, he understood that if he stabbed someone to the head with a sharp knife and it went into the brain, it could kill that person. However, later his evidence was clarified when it became clear that he had not thought about those matters before the stabbing incident but that he was thinking about them in the witness box.

13. The evidence did not permit a finding that the accused intended to stab Mr Higgins in the head and that he stabbed him in the head by a deliberate choice. It is trite that to enable a conclusion beyond reasonable doubt of the guilt of the accused, “it is necessary not only that his guilt should be a rational inference but that it should be ‘the only rational inference that the circumstances would enable [the jury] to draw’”: Barca v The Queen (1975) 133 CLR 82 at 104 following Plomp v The Queen (1963) 110 CLR 234 at 252 and followed in Cutter v R (1997) 143 ALR 498 per Brennan CJ and Dawson J at 502. As Brennan CJ and Dawson J observed in the last mentioned case, at pp502-503:

    “With great respect, although the deliberation of the stabbing motion with the knife towards the upper portion of Kirwan’s body is a fact which can and does support an inference of an intent to kill, and although the likelihood of inflicting a fatal wound or the probability of death resulting from such a deliberate stabbing might be obvious to a reasonable person taking an objective view of what happened, the surrounding circumstances must be considered before excluding the possibility that the appellant inflicted the wound without an actual intent to kill Kirwan. A result of the stabbing that would be ‘obvious to any person’ or ‘common knowledge’ or ‘obviously probable’ might not have been appreciated by the appellant, much less desired, having regard to his stage of mind at the time.”

14. In the present case the accused was obviously angry and intoxicated, and it is a reasonable possibility that he stabbed Mr Higgins on the spur of the moment devoid of any appreciation that he could have killed him.

15. Given those circumstances, I was not able to exclude as a reasonable possibility that the accused did not intend to actually kill Mr Higgins or to cause harm to him. I appreciated that an intention to kill or harm may be formed in an instant and it was not necessary for the prosecution to prove that the relevant intention existed for some time before the stabbing. It is the intention at the time of the stabbing which is relevant. I had a reasonable doubt that the accused intended to kill Mr Higgins and consequently the third element of the charge was not proved.

16. The last element of the charge which the prosecution must prove beyond reasonable doubt is that the stabbing was unlawful.  In view of my conclusion that the necessary specific intent had not been proved beyond reasonable doubt, it is not necessary to consider this element in the context of the charge of attempted murder, but as it is also an element of the charge of wounding with intent to cause grievous bodily harm it is convenient to mention my conclusion about this matter at this stage of my reasons. In the circumstances of the stabbing as disclosed in the evidence, there are no circumstances which could even suggest that the stabbing was lawful. There was no suggestion that the accused was acting in self defence or in any other way which would render the stabbing lawful. Even if Mr Higgins did stop on the footpath and say that he would fight the accused, that conduct could not provide the circumstances which could have justified the stabbing in self defence. I doubted whether that part of the evidence of Mr Betts was accurate but it was not necessary to decide the matter because, as I say, such a stance by Mr Higgins did not constitute what I call an occasion of self defence by the accused.

17. For these reasons, I found that the charge of attempted murder had not been proved beyond reasonable doubt.

18. I have mentioned s 270AB of the Criminal Law Consolidation Act. I concluded that there were no circumstances which would have justified a verdict of manslaughter if the accused had killed Mr Higgins and had been charged with murder. The attack by the accused was not provoked by Mr Higgins and was not undertaken in self defence. As will be seen, I found it proved beyond reasonable doubt that the accused did intend to cause grievous bodily harm when he stabbed Mr Higgins, intention which is sufficient for murder had Mr Higgins been killed. Consequently, a finding of an unintentional killing by a dangerous and unlawful act, or by gross negligence, would not have been open had the charge been murder. It was not appropriate to consider a verdict of attempted manslaughter.

19. I now turn to the charge of wounding with intent to cause grievous bodily harm.

20. In order to prove the charge, the prosecution must prove beyond reasonable doubt that the accused stabbed Mr Higgins by a deliberate, conscious and voluntary act, that a wound was inflicted on Mr Higgins, that at the time of the stabbing he intended to cause grievous bodily harm to Mr Higgins and that the wounding was unlawful.  A wound is caused when all the layers of the skin are penetrated.

21. There is no need to again discuss whether the prosecution had proved beyond reasonable doubt the first and fourth elements as I have set out my conclusions about these matters in the context of the charge of attempted murder. I was satisfied beyond reasonable doubt that the accused stabbed Mr Higgins by a deliberate, conscious and voluntary act and that his action was unlawful.

22. It may be seen from the evidence of Mrs Higgins, Mr Leaver, Dr Olaiya and Dr Tan that Mr Higgins in fact suffered grievous bodily harm.  The evidence of these witnesses establishes that a wound was inflicted on Mr Higgins.  I found that these elements of the charge have been proved beyond reasonable doubt.

23. What remained was whether the prosecution had proved beyond reasonable doubt that the accused intended to cause grievous bodily harm to Mr Higgins when he stabbed him. I found that the accused did have this specific intention. He was angry at, or resentful towards, Mr Higgins in the kitchen of the house shortly before the stabbing and had used a knife to threaten him. He followed him out of the house when Mr Higgins was going home. He attacked him suddenly and without warning and in the course of doing so stabbed him to the head. I accepted that he would have been aware that such an act would cause serious injury to Mr Higgins. His intention had to be inferred from what he did at the time.

24. What then, in this context, was the significance of his intoxication. I found that he was not highly intoxicated because of his actions and movements around the time of the stabbing. He threatened Mr Higgins in the kitchen and immediately desisted when told to do so by Ms S V Miller. There was no evidence of disorientation or lack of coordination on his part. To the contrary, he was able to run away and decide not to stay with his mother who was nearby, but to go to Ceduna and stay with a cousin. I did not regard these actions as the actions of a man who was uncoordinated and confused. I had regard to the evidence of the accused that he could not remember the events of the previous night when he awoke the next morning but even if that was so, it does not follow that he did not appreciate at the time what he was doing when he stabbed Mr Higgins. I concluded that the accused was intoxicated, but not to such an extent that he could, or did, not form the required intention to cause grievous bodily harm to Mr Higgins at the time that he stabbed him.

25. I found all of the elements of this charge proved beyond reasonable doubt. Consequently, it was unnecessary to go on to consider the charge of unlawful wounding.

26. For these reasons, I entered the verdicts which I have mentioned.